S v Mabilu and Others (CC66/2018) [2022] ZALMPPHC 19 (31 March 2022)

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[2022] ZALMPPHC 19
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S v Mabilu and Others (CC66/2018) [2022] ZALMPPHC 19 (31 March 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NUMBER:CC66/2018
REPORTABLE: YES/NO
OF INTEREST TO THE
JUDGES: YES/NO
REVISED
In
the matter between:
THE
STATE
And
KABELO
MAPALA
MABILU

ACCUSED 1
KOPI
BOB
PHOKANE

ACCUSED 2
THAPELO
KGAMARA MAEBELA

ACCUSED 3
ROBERT
MARANGRANG PHOKU

ACCUSED 4
MARUMO
ESROM
PHOKU

ACCUSED 5
LAZARUS
HAPPY
PHOKU

ACCUSED 6
P[....]
C[....]
M[....]

ACCUSED 7
RESHOKETSWE
EDITH MATJIE

ACCUSED 8
ELIAS
ISAAC
MAEBELA

ACCUSED 9
MONDRY
MAREDI
MAEBELA

ACCUSED 10
TEMOSHO
JOHANNES
MABILO

ACCUSED 11
ELSON
PAKENG
MAROBANE

ACCUSED 12
MARTIN
MAEBELA

ACCUSED 13
MMEKENG
AARON
NGOATLE

ACCUSED 14
GERMINAH
MAHLAKA
MABILO

ACCUSED 15
JUDGEMENT
KGANYAGO
J
[1] The accused have been
indicted to this court on 9 counts. Count 1 is malicious damage to
property which relates to all the accused;
count 2 public violence
which relates to all the accused; count 3 murder which relates to
accused 1,2,3,4,7 and 8; count 4 malicious
damage to property which
relates to accused 1,2,3,4,7 and 8; count 5 arson which relates to
accused 1,2,5 and 6; count 6 arson
which relates to accused 1,2,5 and
6; count 7 arson which relates to accused 1,2,5 and 6; count 8 arson
which relates to
accused 1,2,5 and 6; and count 9 public
violence which relates to accused 1,2,5 and 6.
[2] All the accused have
pleaded not guilty to all the counts they are facing. They have given
a lengthy plea explanation which
in short they are denying any
involvement in the charges that they are facing. The State proceeded
to call its first witness Kgalema
Walter Mohlala. He testified that
Chief Bethuel Mohlala is his brother. On 23
rd
April 2017
he was at church in Moria when he received a missed call from his
wife. Later he phoned his brother who informed him
that the chief’s
kraal and his house has been burned. He then phoned his wife who was
at her parental home at Gankoana. His
wife told him what happened.
[3] On Monday he went to
the police station to open a criminal case. He only went to his house
during December 2018 and found that
it has been completely burned. It
was a nine-bedroom house which was fully furnished. The estimated
damage to the house and furniture
can be about R700 000-00.
There was no one in the house when it was burned down.
[4] The witness was cross
examined and he conceded that in his police statement dated 25
th
April 2017 he had stated that he did not know who the suspects were.
[5] The State called
Tintswalo Audrey Shikathi who testified about count 5 to 9 as its
second witness. He testified that he is a
police officer and
Lt-Colonel in rank stationed at Mecklenburg SAPS. On 23
rd
April 2017 he was posted at Diphale village together with his
colleagues from TRT and POPS.
[6] On arrival at Diphale
village they saw a black smoke that was coming from an uphill and it
was around 11h00 am. They drove to
the direction where the smoke was
coming from. As they were driving on the road, they saw some burned
tyres, big rocks and sticks
on the road. They were unable to pass as
the road was barricaded. They got off the police vehicle and removed
those objects from
the road. Community members started throwing
stones at them. After removing those objects, they went to where the
smoke was coming
from.
[7] On arrival at the
place where there was smoke, they found that it was the chief’s
kraal that was burning. He saw four
houses and also two buildings
that looked like a hall burning. The four houses and two halls were
inside the chief’s kraal.
As they were at the chief’s
kraal he saw another house on the downward slope also burning. Some
community members started
throwing stones at them. They went to the
downward slope and found a big house burning. As they were at that
house, they saw another
smoke from their left hand side.
[8] They went to the
place where the third smoke was coming from and found a double storey
house burning. As they were there they
saw the fourth smoke coming
from uphill. As they went to the fourth house that was burning, they
saw people running from that house,
but could not reach them as the
road was barricaded. When they ultimately arrived at that place, they
found a big face brick house
burning. They heard that the community
members were looting at Moropa’s shop. They went to Moropas
shop and saw people running
towards the mountain. Some of his
colleagues gave chase to the people who were running towards the
mountain. His colleagues came
back with some braai packs and
groceries alleging that the said items belonged to Moropa’s
shop.
[9] On the second house
that was burned he did not see people there. He was told that the
house belonged to Mr Matjie and the fourth
house belonged to Mr
Mohlala. They did not see anyone who had burned the houses because
they did not find anyone on the scene.
[10] The witness was
cross examined and he conceded that the village was in complete
chaos. He further stated that at the chief’s
kraal he saw two
cars that were burned.
[11] The State called
Debora Mafoshe Maboe as its third witness. She testified that during
April 2017 she was staying in Lebowakgomo
and she is also having a
house at Diphale village. She left Diphale village on 16
th
April 2017 and went to stay in Lebowakgomo. She fled from Diphale
village as community members were troubling them.
[12] On the 23
rd
April 2017 she received a call from her daughter Olga Ngwatle
informing her that her house was on fire and that a group of people

whom she could identify were at that house. On 24
th
April
2017 she and her husband went to Diphale village and found their
house burned down. She did not know the people who burned
it, but she
is having suspects in her mind.
[13] It was a
five-bedroom house and the estimated damages to it amounted R1 200
000-00. She suspects that the accused Kabelo Mabilu,
Esrom Phoku,
Kopi Phokoane and Mbuti Maebela are responsible because they are the
leaders of the community that was after them.
[14] She was involved in
MCC Projects as a director and also a teacher at the crèche.
She is not comfortable in naming the
other directors of MCC. However,
Shadrack Matjie is a director of MCC whilst Chief Bethuel Mohlala is
not a director. She knows
nothing about Bogompane Chrome.
[15] The witness was
cross-examined and it was put to her that the names of the suspects
that she had mentioned had nothing to do
with the burning of her
house and she stated that she only suspects them.
[16]
The State called Mokgale Shadrack Matjie as its fourth witness. He
testified that currently he is in hiding. During April 2017
he was
staying at Diphale village. He left Diphale village on a Good Friday
during April 2017.
[17]
On the 23
rd
April 2017 he was where he is currently hiding
when he received a call that there was a problem at the chief’s
kraal as community
members wanted to burn the chief’s kraal,
and when they are done with the chief’s kraal, they are going
to burn his
house. There was nothing he could do.
[18]
After about an hour, he received another call that community members
have gathered around his house. Later he got another call
informing
him that his house was burning. He went to open a criminal case with
the police. He went to check his house after a long
time when he went
to attend a funeral of a relative during 2018. He found a completely
burned house and there was nothing that
he could salvage. They have
also burned his two vehicles and have also attempted to burn his
tractor. The estimated value of the
damage amounted to R1 500 000-00.
[19] He works at MCC and
Makgomo Chrome. Bajabowa Chrome company and Bogompane were merged to
form MCC. When his house was burned,
Jane Mashaba was staying in that
house. MCC benefit 6 communities who gets the benefits after chrome
has been processed. Makgomo
comprises of 3 companies, MCC, Marula
Mine and Impala. MCC hold 50% shareholding whilst Marula 20% and
Impala 30%. As for Marula,
it is the custodian, whilst 20% is for the
community.
[20]
The witness was cross examined and he conceded that in his police
statement he had mentioned the names of the suspects. He
conceded
that those are the names that he had discussed with Debora, the
State’s third witness. He conceded that the dispute
between his
group, the chief and mphakathe was about mining. He conceded that
Barclays is his son although not biological and that
he had bought
him a car, though it is still registered in his (witness) names and
that Barclays relies on him for survival as he
still supports him. He
conceded that in his police statement he had stated that the reasons
why he suspected the accused was that
they were the leaders of
mphakathi and that it was not the only reason. The other reasons are
that during 2016 the group of accused
1 interfered with the day to
day running of the mine and were also in contempt of a court order.
That accused 1 is a troublemaker.
Most of the time during cross
examination, this witness was evasive, argumentative and giving
irrelevant answers.
[21] The State called
Mafete Bethuel Mohlala as its fifth witness. He testified that he is
the chief at Tswako Mohlala Traditional
Authority. On the 23
rd
April 2017 he was attending a meeting in Polokwane when he received a
call informing him that community members were attending
a meeting at
the chief’s kraal. He requested to be excused from the meeting
to go home. He arrived home at Diphale village
around 13h00 and found
rocks on the road. He forced his way and on arrival at his home he
saw flames and smoke.
[22] He met a certain boy
who told him that he saw Kaizer Maboea leading the group of people
and that boy fled when he wanted to
question him further. Four houses
were burned and one of the house had two cars in the garage. Two
tribal offices with halls were
also burned. The estimated damage
could be about R5 000 000-00.
[23] The witness was
cross examined and he conceded that he did not know the people who
burned his houses, cars and tribal offices.
[24] The State called
Nokane Aubrey Mokwena as its sixth witness who testified about count
1 and 2. He testified that he is a police
officer and W/O by rank. On
15
th
April 2017 he received a message from his commander
that things were bad at Diphale village and that the situation needed
a nyala
vehicle. He took the nyala and drove to Diphale village. He
was told that a person was about to be killed and that her car was
burning and further that Moroka and Mecklenburg SAPS where unable to
enter the village as the road was barricaded with stones and
they
were using light vehicles.
[25] On arrival at the
scene he found a car burning and there was a mob which when it saw
the police nyala, it fled the scene. He
called the person who was
said to have been kidnapped and that person told him that he was
Barclays Thobejane. One Victor Thobejane
who said was Barclay’s
brother also came. Victor told him that he was amongst the mob. He
took Victor and Barclays to the
police station. Victor told him that
he knows the people who were there at the scene. Victor told him that
he was afraid of those
people and was also afraid to give a police
statement as he feared for his life. He then took Victor and Barclays
to Mecklenburg
SAPS for safety purpose.
[26] When he arrived at
the place where the car was burning, Barclays was inside the house at
a certain homestead. The car was burning
outside the yard next to the
gate. He also saw people sitting under the tree.
[27]
The witness was cross examined and nothing knew came out.
[28]
The State called Maleta Eric Makgolane as its seventh witness. He
testified that he is a police officer, W/O by rank stationed
at
Mecklenburg SAPS. On the 16
th
April 2017 he was on duty
with captain Maimela and Sgt Seabi when he received a message from
Colonel Chuene that someone has been
murdered at Diphale Seuwe
village. They rushed to Diphale village.
[29] On arrival at
Diphale village at Kgopane’s family, they found a white double
cab bakkie in smoke showing that it was
burning. When they get closer
at the bakkie they saw what looked like a human being and had being
burned next to the bakkie. What
was remaining of that person was a
skull, half of the spinal cord and a piece of the foot. They also saw
what looked like a big
tyre which had also burned. They then phoned
the pathologist and fingerprints experts.
[30] When they asked the
people who were around as to what might have happened, they were told
that the person might have been killed
by community members from
Diphale village. They were further told that the deceased was
Ntaporosana Anna Maebela-Tau. The witness
was cross examined and
nothing new came out.
[31] The State called
Barclays Makhudu Thobejane as its eight witness. He testified that on
the 15
th
April 2017 he visited his friend Joel Molamo
driving a brown Toyota Etios. On arrival at his friend’s
homestead, he parked
his vehicle at the gate and entered the yard. He
did not find his friend and was told that he had gone to visit his
sister who
did not live far. As his sister was not living far, he
left his car parked at the gate and walked to the sister’s
place where
he found his friend.
[32] He and his friend
left the sister’s home and went to his friend’s home. On
the way his friend told him that he
was going to church. On arrival
to his friend’s home, his friend told him that he was going to
bath before he goes to church.
He then went to his friend’s
other sister where he was supposed to collect a parcel.
[33] When he returned to
from the other sister’s place and was about to reach his
friend’s homestead, he saw a group
of people going towards his
friend’s gate. He then entered the yard. In that group he saw
accused 1, 2, 4 and 8. The group
told him to get out of the house as
they wanted to stone him to death. Those words were uttered by
accused 1, 2, 4 and 8. Other
people started throwing stones at the
car and smashing its glasses. Those he saw throwing stones were
accused 11, ,9 and accused
11’s mother whom he does not know
her name, 14, 7 and others whom he did not know their names.
[34] Accused 13 and 12
were throwing stones into the yard. He saw accused 2 in possession of
a bottle that contain petrol and he
threw it at his vehicle but it
did not burn. Accused 1 also took out a bottle and threw it at the
car but it did not burn. It was
1,25 litre cool-drink bottle. Then he
saw accused 3 opening the fuel cap of the car. He also saw accused 4
and 10 lighting matches
and throwing it inside the fuel tank and the
car started burning.
[35] When the car was
burning, accused 1 told others to go and fetch the person inside the
house so that they can hit him with stones
and put him inside the
burning car. Some minutes later the mob started dispersing. He then
saw the police in a nyala vehicle. The
police officer came to him and
one of the police officer introduced himself as Mr Mokwena. When the
policeman took him, he immediately
saw his brother Victor Thobejane
next to the nyala and he did not know where he came from. He and his
brother left with Mr Mokwena
in the nyala vehicle. Mr Mokwena took
them to Mecklenburg police station.
[36] The people who were
present at his friend homestead who witnessed the incident are Joel
Molamo, Mogatle Molamo, Diphaki Molamo,
Albertina Mannye and Neo
Mannye. At the police station he made a statement to the police. The
accused who were present at the scene
were 1, 2, 3, 4, 7, 8, 9, 10,
11, 12, 13, 14 and Temosho’s mother who is accused 15. He knew
all the accused for many years.
The people whom he had identified, he
saw their faces as they were not far from him. When they started
throwing stones he was inside
the house. The value of his car that
was burned was about R140 000-00. He was given the car by
Shadrack Matjie and the car
was still registered in Shardrack’s
names.
[37] The witness was
cross examined and he conceded that he was in hiding at an
undisclosed location together with Shadrack until
June 2018. He
conceded that accused 5 and 6 were not at the scene. He stated that
he knew all the accused very well as some he
grew up with them. He
conceded that there were many people at the scene and will not know
the number. He conceded that all these
incidents that were unfolding,
was as a result of mine activities. He conceded that he never felt
threatened, and that nobody ever
chased him, and that he did not run
into the house. He conceded that the mob never threw stones at him.
He conceded that the windows
of the house that he was in were never
damaged by the mob. He conceded that from the mob he did not know who
was the first to threw
a stone. The witness stated that anything bad
that happens at Diphale village is associated with mphakathe group.
He also stated
that he had told Shardrack that the car was burned by
mphakathe group and he knows their names.
[38] The State called
Nkotwane John Moretsele as its 9
th
witness and he
testified about count 3 to 9. He testified that the 16
th
April 2017 was the day after Ntheke Kgopana was murdered, and on that
day he went to Nteke’s homestead to pay homage.
[39] On arrival at
Nteke’s homestead, he saw accused 1 who was started addressing
the people who were at that homestead. Accused
1 told the gathering
that there were people who were wiping out the community and that
those people came from far places such as
Lebowakgomo. Accused 1
mentioned names like Ntaporosane Maebela (deceased). Accused 1 told
the gathering that those who have parked
their cars next to that of
the deceased’s car must move them. Other people who told the
people to remove their cars were
accused 7, 3, 2, 8, 4.
[40] The deceased was
driving a Toyota double cab. This double cab was parked in the yard
where the funeral was supposed to be held.
After cars were removed,
accused 7, 8 and others went into the house to fetch the deceased.
They came out of the house dragging
and assaulting the deceased. The
deceased was also tied with a lace or robe. She was being dragged by
8 and 7. Stones were also
thrown at the deceased and she was also
assaulted with sticks. Accused 2, 3 and 4 were assaulting her with
stones and other women
whose names are unknown to him were using
sticks to assault her. Accused 1 and 3 went to fetch a tyre. He does
not know where they
got the tyre but it seems to have been ready. It
looks like to be the tyre of a truck. Accused 1 and 3 put the tyre
over the deceased
body and accused 2 was having a 5 litre container
of petrol. He poured petrol on the car and the deceased. Accused 1,
2, 3 and
4 were having matches and they lit them and the car caught
fire. There was pandemonium as everyone was moving back for safety
fearing
that the car might explode. He then went home.
[41] He knows accused 1,
2, 3, 4, 7 and 8 as he used to be part of mphakathi with them from
2015 to 2016. He left mphakathi during
2016. They formed mphakathi
for the sole purposes of fighting chiefs. He left mphakhathi because
he was not pleased in the manner
in which they were doing some of the
things.
[42] The 23
rd
April 2017 was the day on which Ntheke was buried. At the graveside
when the coffin was lowered, accused 2 and 6 started firing
firearms
shots into the air. Accused 1 then told the mourners that after the
funeral people who have gone to the deceased homestead
must not
leave. He further told them that from the deceased homestead they
should go to a marula tree at moshate.
[43] On arrival at the
marula tree, accused1 told the elders to leave and go to their
respective homes. After the elders have left,
accused1 told them that
things have gone to the worst and that they should start burning the
houses of the people who are against
them. He told them that they
should start burning moshate first.
[44] At that stage
accused 5 arrived driving his red car. It had a 20 or 25 litre
container of petrol. They entered moshate and
set it alight. Accused
1 was the one who ran and burned the houses at moshate with that
petrol. Accused 2 burned the offices. After
they burned moshate, they
went on a rampage burning other houses. The last house that he saw
them burning was that of Walter Mohlala.
[45] After moshate and
other houses were burned, he ran away to his homestead. As he was
going home, he saw the red car coming and
its occupants were accused
1, 2, 3, 4, 5 and others that he did not know. The red car went to
Walter Mohlala’s homestead.
At Walter Mohlala’s homestead
he saw accused 2 shooting Walter’s dog in the yard with a
firearm. Then he saw accused
2, 3 and 4 entering the yard with a
petrol container. Accused 5 together with 6 also entered. Whilst
inside the yard, they started
breaking the windows of the house.
Accused 1 was having a 5 litre container and started pouring it at
the houses and thereafter
set them alight. After that they dispersed
and fled. He also saw accused 2 setting the house alight.
[46] If he remembers
well, on the 23
rd
April 2017 the houses that were set
alight were that of Ms Maboea, Shadrack Matjie, moshate and Walter
Mohlala. However, that day
he did not see the houses of Shadrack
Matjie and Ms Maboea burning but he believes they were burned that
day. The first house was
burned around 11h00. He will not know what
time they finished burning the houses as this thing was done in a
rush.
[47] The witness was
cross examined and he disputed one of the police statement as his and
stated that he did not know who might
have signed it. The statement
that the witness disputes as his has been marked A10 and the one that
he accepts as his is marked
A4. He stated that he was expelled from
mphakathe because he was refusing to burn moshate. He denied that he
was a rented witness
to come and implicate the accused. However,
after lunch break the witness conceded that the statement marked A10
was his and that
it was his handwriting that appears on that
statement. He stated that he initially disputed it as he was confused
by these A10’s
and A4’s. He stated that he started
knowing accused 5 during 2015. He conceded that on 23
rd
April 2017 accused 6 was not at the scene of crime, but at his home.
[48] The State brought an
application for admission of the written statement made by Mmabatho
as she does not seem to be willing
to come and testify. The
application was refused and the State proceeded to close its case.
The defence brought an application
for a discharge of all the accused
in terms of section 174 of the CPA and the application was refused.
[49]
The defence proceeded to call accused 5 to the witness stand and he
testified under oath. He testified that there is a dispute
between
the members of the community of Diphale whom he refers as mphakathi
and the members of the royal family regarding mining
operations by
Impala which operate at Marula Mine. He was part of a march to
Sandton against Impala regarding the challenges which
the communities
face being lack of employment and chrome mining in terms of Impala’s
social labour plan and corporate investment
plan. Impala has given
the community permission to mine chrome.
[50] He (accused) was
part of the leaders who were delegated by community members to go to
Marula Platinum Mine as the licence holder
and enquire from them as
to how the community was benefiting as the said project was long
ongoing. Marula Platinum Mine in turn
called the private companies
which were mining chrome. The directors of the said companies were
Shadrack Matjie the fourth State
witness, who was a director of
Makgomo Chrome. However, the directorship of the fourth State witness
was terminated during 2020.
[51] That they also went
to the police station as the leaders of mphakathi were always
arrested for doing nothing. On 13
th
April 2017 the leaders
of mphakathi which comprised of himself, accused 1 and the late Nteke
Andrew Kgopana appointed Noxuko Attorneys
to assist the community
about the issue of chrome mining. They were supposed to report to the
community the following day after
the meeting with Noxuko Attorneys.
However, he (accused 5) and his wife went Moria Church for the Good
Friday celebration as good
Friday was the following day. That he also
went to their local priest to report that he was going to Moria. He
used his vehicle
to go to Moria and he arrived in Moria around 16h00.
He was using a red Toyota Hilux which he is the owner of it. That the
said
vehicle had a car tracker since 2015.
[52] On arrival at the
church he attended the church service and later attended the mokhukhu
dance which finished around 20h00.
After that he went to sit in his
car. Around 21h00 he received a call that Nteke has been shot and
killed, and that terrified him.
He slept in his car. He left Moria in
the early hours of Monday around 3h00. He took his wife to his
mother’s place and thereafter
went back to Moria. He did not
want to take his wife to their common home as one of the leaders of
mphakathi was shot and killed.
He went back to Moria for safety
reasons. He went back home on 20
th
April 2017 as he was
phoned by his local branch church and told that they have received a
letter from the royal family saying that
he (accused 5) and those
associated with him were intending to burn Moshate as Moshate has
killed one of their associates.
[53]
He drove back home and on arrival he went to his local branch of the
church. On arrival at the local church he asked the priest
to show
him the letter but they failed to show him. He told his local priests
that he knew nothing about the intended burning of
moshate and did
not intend to do that. He told the priest that he was taking shelter
in Moria and after that meeting he was going
back to Moria. From the
meeting with the priests, he went back to his home where he stayed
until Saturday the 22/04/2017. On Saturday
the 22/04/2017 he went
back to Moria and he stayed in Moria until the 7
th
May
2017.
[54] When he came back
home, he found that there were people who have been arrested. As they
were attending court for those who
have been arrested, their attorney
informed them that his name was amongst those the police were looking
for and that he must hand
himself to the police. He handed himself to
Mecklenburg SAPS on Monday 15
th
May 2017 and he was
arrested.
[55] That the other
directors of Mmakgomo Chrome are Walter Mohlala the first State
witness and Debora Maboea the third State witness.
That there is also
Tswako Mohlala Royal Family Trust headed by Bethuel Mohlala, the
fifth State witness. That there are serious
disputes between the
royal family and the community.
[56] The accused further
testified that he had approached his tracker company to furnish him
with a report about the movement of
his car, but was told that the
package that he has taken was only for when the car was stolen and
not about its movement. That
on 23
rd
April 2017 the date
of the funeral of Nteke when several houses were set alight, he was
in Moria and his cell phone records support
his version. That on the
date of the incident he was using and is still using the same cell
phone number [….].
[57] The accused was
cross examined and he conceded that John Moretsele the State’s
9
th
witness was part of the executive of mphakathi in
Seuwe Development Forum up to December 2016 when the forum removed
him. The accused
conceded that he was working closely with the late
Nteke, and further that they were also related and that the late
Nteke was named
after their late great grandfather. He stated that he
could not attend the funeral of Nteke as he was supposed to do church
prescriptions
before the specified dates. The accused conceded that
the State’s 9
th
witness knew his red bakkie but that
on 23
rd
April 2017 his bakkie was parked in Moria and he
never drove it. When it was put to the accused that the cell phone
records did
not show that the cell phone number was registered in his
names, he stated that what he knows is that the cell phone number
that
he uses is [….]. When it was put to him that according to
the cell phone records, the number is registered under Motlashe

Phokoane, he stated that he did not know that person. He denied that
on 23/04/2017 he was at the home of Walter Mohlala driving
his red
bakkie, and that on that particular day, his car was parked in Moria.
The accused stated that after coming back from Moria,
he at no stage
went to Nteke’s homestead.
[58] The defence called
accused 6 to the witness stand who testified under oath. He testified
that he is employed at Fetakgomo Tubatse
Municipality currently as
acting manager public participation. That at the time of the incident
his job description entailed convening
public meetings. That Diphale
village falls under Fetakgomo Tubatse Municipality. He is the
chairperson of six host community forum
since 2016.
[59] That none of the
witnesses for the State had implicated him on the charges of the 15
th
and 16
th
April 2017. That on 23
rd
April 2017,
he attended Nteke’s funeral which was on a Sunday. That on 22
nd
April 2017 he had slept at Mandagshoek as after Nteke was shot, most
of the leaders of mphakathi had fled from Diphale village.
There were
rumours from Diphale village that the youth wanted to investigate the
mine operations and they assumed that Nteke was
killed for mine
issues and they were asking themselves as to who was next.
[60] In the morning of
the 23
rd
April 2017 he went to Nteke’s funeral and
he was alone. He arrived at the funeral at 7h30 and found that there
was no proper
arrangement for the funeral, as Nteke’s body had
not yet arrived from the mortuary. He assisted in the proper
arrangement
of the funeral that morning. He did not take part in the
funeral arrangements during the week as he had fled from his home.
They
met the mortuary vehicle at Mafete village which is about 4km
from Nteke’s homestead. From there they took the coffin of
Nteke from the hearse and carried it by hands as he was their comrade
and took it to Nteke’s homestead.
[61] From there they
carried the coffin to the graveyard. At the graveyard there were
people who were selected to search the people
who entered the
graveyard, as they wanted to make sure that there was no one who
entered the graveyard with a firearm. He does
not have a firearm
licence and a firearm.
[62] After the burial at
the cemetery, they went back to Nteke’s homestead. At the
funeral he, accused 1 and other leaders
of mphakathi were running the
program of the funeral. He and accused 1 even gave speech at the
funeral. On the day of the funeral,
accused 5 was in Moria as he was
communicating with him telephonically.
[63] He knew the 9
th
State witness very well as they used to attend forum meetings with
him and the 9
th
State witness was also given training in
the mine. He also knew where the 9
th
State witness
resides. At some stage the 9
th
State witness was part of
the forum. Later the 9
th
State witness and others were not
happy with resolutions taken by the forum regarding the mine and the
9
th
State witness and others took the register of the
meeting of the forum and ran away with it. That resulted in the 9
th
State witness, Kenneth Maake and Edward Phasha being dismissed from
the forum by community members. He disputes the evidence of
the 9
th
State witness against him.
[64]
After the funeral of Nteke, he left with accused 1 as accused’s
1 vehicle was recently burned, and during that time accused
1 did not
have a car. Accused’s 1 car was burned before the funeral. He
dropped accused 1 at Mandagshoek at a place called
circle and
thereafter drove to Witbank. At about 14h00 whilst passing Stofberg
on the way to Witbank, his mother-in-law phoned
him and told him that
moshate was burning. From Nteke’s homestead to Stofberg can be
about 220 km. As per his cell phone
records at about 14h00 it shows
that he was at De Hoop Tower which is on his way to Stofberg. His
cell phone records also shows
that at 14h39 his mother-in-law had
phoned him. When moshate started burning, he was already far away
from that place.
[65] He heard through
accused 5 that the police were looking for him, and by then some of
his co-accused were already arrested three
weeks prior to be informed
by accused 5. He does not remember when he was arrested, but he went
to the police station together
with accused 5, the same date he was
told that the police were looking for him. On arrival at the police
station they found police
officer Moitsi. As they were explaining to
Moitsi, one police officer Seabi arrived said that they must be
arrested and charged
with all counts despite Moitsi telling Seabi
that they were not present when the murder offence was committed.
[66] His cell phone
records shows that on 23
rd
April 2017 at 12h58 he had
phoned accused 5. What he remembers is that when he phoned accused 5
that day, accused 5 was in Boyne
and he was reporting to him that
they were done with Nteke’s funeral. The accused further stated
that after the 9
th
State witness was dismissed from their
forum, the 9
th
State witness joined the group of the
fourth State witness.
[67] The accused was
cross examined at length by the State counsel and he conceded that he
had attended the burial of the late Nteke,
but that after they came
back from the cemetery he did not stay long but had left at 12h30. He
further stated that when people
started burning houses he was not
there. He further stated that he left the homestead of the late Nteke
with accused 1, and that
he dropped accused 1 at Mandaghoek before
13h00. The accused stated that he learned about the burning of the
houses around 15h00
when he was phoned by his mother in law when he
was on his way to his hiding place in Witbank, where he was staying
at his brother’s
house Simon Khosa, and that he arrived there
around 16h00 to 17h00. The accused further stated that whilst in
hiding in Witbank
he was not reporting for work at Fetakgomo
Municipality as he had explained his situation to his employer who
understood his situation.
The accused further stated that on the date
of the funeral accused 5 was in Moria.
[68] The defence called
accused 9 to the witness box and he testified under oath. He disputed
that he was present when all these
incidents happened, but that he
was at home. He stated accused 3 is his brother and that accused 3
was arrested before him. That
after accused 3 was arrested, he went
to court to go and listen to his case and also pay for his bail if
granted. Whilst at court
the police told him and those he was in
company with, that the court will not grant the accused bail as there
were other suspects
they were still looking for.
[69]
Accused 9 and those with whom they have attended court with, went to
the police station to find out whether their names were
also on the
list of the names of the people whom the police were still looking
for. The police refused to give the list of names
of the people they
were still looking for. Accused 9 and his company approached their
legal representative Mr Lebogo to find out
from the police on their
behalf. The police gave Mr Lebogo that list and when accused 9
checked that list, he found that his name
and that of his company
appeared on that list. Accused 9 and his company then phoned those
who were not at court and informed them
that their names appeared on
the list of wanted suspects. The following day all those who appeared
on the list of wanted suspects
went to police station where they were
arrested. According to accused 9 he went to the police station
knowing that he did nothing
wrong. Accused 9 further stated that
those who handed themselves to the police are himself up to accused
15.
[70] Accused 9 further
testified that on the day Barclays vehicle was burned, he had met
Barclays in the morning and that Barclays
was driving his vehicle.
After meeting Barclays, accused 9 went home, and later he heard that
Barclays vehicle had been burned.
That even when the police arrested
him, he told them that he knew nothing about the incident, but that
he had met Barclays in the
morning.
[71]
The accused was cross examined and he stated that on the date of the
incident he had met Barclays at about 8h00, but he did
not speak to
him. Accused 9 denied that on the day of the incident he went to the
place where Barclays vehicle was burned. Accused
9 stated that he
learned about the burning of Barclays vehicle the same day of the
incident around 15h00 to 16h00 whilst at home
from many people who
were talking about the incident, and also when he was at work at
Marula Platinum. Accused 9 further stated
that at the time of the
incident he was having a plaster of parish on his arm and he could
therefore not have been in a position
to throw a stone, and further
that he was not there where the incident took place.
[72]
The defence called accused 10 to the witness stand who testified
under oath. Accused 10 disputed the version of Barclays who
had
implicated him. Accused 10 disputed that he was at the place where
the incident took place but that he was at home sleeping.
That he was
one of the accused who have handed themselves to the police under the
circumstances as testified by accused 9. He further
testified that he
is one of those who did not attend court but was phoned to be
informed that their names were on the list of suspects.
When he
received the call he was at work at Modikwa Platinum Mine. The
following day he went to Moroke SAPS with accused 9 as he
knew that
he was innocent. He knew Barclays very well and did not have any
issues with him. Accused 10 stated that he thinks the
motive for
implicating him was that he was on the other camp that was opposing
Barclays father on issues of chrome.
[73] Accused 10 was cross
examined and he denied that on the 15
th
he had left his
homestead, as the previous night he had spent the whole night at a
pub and was having a hangover. He stated that
on the day of the
incident he was alone at home as his mother and siblings had gone to
a church conference in Witbank. Accused
10 stated that he learnt
about the burning of Barclays car the same day around 15h00 when
passerbys’ from the village were
talking about it when he was
lying on the sofa due to the hangover. He stated that the sofa he was
lying on was about 10 to 12
paces from the street.
[74]
The defence called accused 11 to the witness stand and he testified
under oath. He disputed the evidence of Barclays that implicate
him.
He disputed that he was at the place where Barclays vehicle was
burned, but that he had gone to Magabaneng to go and watch
a soccer
tournament. That before that incident, he did not have any problems
with Barclays, and that Barclays had a soccer team
and he used to
call him to play for his team. That in the village there were two
groups, one of the chieftaincy and one from the
community. Accused 11
testified that he belonged to the community group whilst Barclays
belonged to the chieftaincy group. Accused
11 stated that he thinks
Barclays implicated him as he thinks that he is the enemy.
[75]
Accused 11 was cross examined and he denied that he was an enemy of
Barclays. Accused 11 stated that on the 15
th
he went to
Magabaneng to watch the soccer tournament around 12h00. He denied
that he went to Magabaneng as he was running away
after the burning
of the car, but that the car was not yet burned. That he heard about
the burning of the car around 15h00 whilst
he was at Magabaneng when
he was also told that the police were all over Seuwe village and that
it was not safe to go there. He
denied that he took part in the
burning of Barclays car. Accused 11 further stated that he went to
the soccer tournament alone,
and that when he returned from the
soccer tournament, he was in the company of unknown people.
[76] The 12
th
accused took the witness stand and testified under oath. He disputed
the evidence of Barclays that implicated him and testified
that
Barclays was lying. He stated that he knew Barclays before the 15
th
April, and was surprised why he lied against him. The accused stated
that maybe Barclays lied against him because he was a member
of
mphakathi, and also one of the people who were very active in
community issues. That on 15
th
April he was at home alone
and sleeping.
[77]
The accused was cross examined and he stated that he slept in the
early hours of the 15
th
April at about 4h00 as he was from
a drinking place, and that he stays with his parents who on that date
have gone to attend a
church service at Seuwe. The accused further
stated that he regarded Barclays as a brother as Barclays had raised
him and they
used to play soccer together. The accused further stated
that he took Mr Shardrack Matjie as his parent as prior to the death
of
the accused father, Mr Matjie and his father were assisting each
other with tractors. The accused stated that he learnt about the

burning of Barclays car two days later at a football match. He denied
that he was opposed to the chiefs.
[78]
Accused 13 took the witness stand and testified under oath. He
disputed the evidence of Barclays that implicated him. He stated
that
on the day Barclays car burned, he was at home. He heard on a Sunday
whilst in a taxi going to town about the burning of Barclays
car. He
knew Barclays before the 15
th
April and denied that he had
thrown stones at Joel’s homestead. The accused stated that it
might be that Barclays had mistaken
him as when Barclays testified,
he had stated that there were many people at the scene.
[79] The accused was
cross examined and he denied that he was in opposition to the chiefs,
and stated that at the time of the incident,
he was no longer
residing in Diphale. He further stated that whilst residing in
Diphale, he was actively participating in community
meetings. He
stated that he moved from Diphale to Natlela during 2015 and that
after moving to Natlela, he was no longer participating
in community
issues of Diphale, and further that Natlela is not part of Diphale
village. The accused stated that he was staying
with his mother and
elder brother, but that on the day of the incident he was alone at
home as his brother and mother have gone
to visit his maternal
grandfather who was not well. He stated that from Diphale to Nyatlela
is quite a distance, and not a walking
distance.
[80] Accused 14 took the
witness stand and testified under oath. He disputed the evidence of
Barclays implicating him. He stated
that Barclays is assuming that it
was him, but that he was not present at the scene.
[81] The accused was
cross examined and he stated that on the date of the incident, he was
at his brother’s house looking
after it as his brother had gone
to Moria in Boyne as it was during Good Friday. He stated that on
15
th
April he left his brother’s homestead at about
15h00 to go and attend a birthday party at Matjie’s homestead,
and he
went back to his brother’s homestead before sunset. He
denied that he was in opposition to the chiefs, and also denied that

he was a member of the community that was opposed to the chiefs.
[82] Accused 15 took the
witness stand and testified under oath. She denied the evidence of
Barclays implicating her and stated
that on the date of the incident,
she was at her aunt’s place where there were lobola
negotiations. She stated that she did
not know Barclays by then, and
that she started knowing Barclays as she was attending court in this
matter. She knew nothing about
the issues between the chief and the
community concerning chrome. She is a woman who stays at home and
looks after the children.
She does not attend community meetings.
Accused 11 is her son. She does not know why Barclays is implicating
her.
[83] The accused was
cross examined and when it was put her that Barclays had referred to
her as Temosho’s mother, the accused
stated that it shows that
Barclays did not know her as within the community they call her
Germina or Lesego’s mother, and
that if indeed Barclays knew
her, he would have referred to her as Lesego’s mother. The
accused stated that on 15
th
April she and her husband left
at about 5h00 in the morning to go to Diphaleng to attend lobola
negotiations and as it was not
that far, they just walked. She stated
that her husband was part of the delegation that went to Moletji
village to go and pay for
lobola whilst she remained preparing food
for the delegation when it returned from Moletjie. She stated that
when she and her husband
left their homestead, they left accused 11
and Lesego, and further that accused 11 had requested transport and
entrance money as
he said he was going to attend a soccer tournament.
She stated that they day Nteke was murdered, was the day on which
they were
baking cookies for the lobola ceremony.
[84] Accused 1 took the
witness stand and testified under oath. He testified that he started
knowing Shardrack Matjie during 2016
after the community forum had
lodged a dispute against the chrome mine. By then Shadrack was a
director of Makgomo Chrome. The
dispute was about the
maladministration of the chrome mine. That the agreement that was
signed with Marula Platinum Mine was signed
with Tswako Mohlala
Traditional Authority and that Shardrack was also part of the
Traditional Authority. That there was the second
agreement with
Impala which was to assist the community in building a chrome plant.
According to the accused, the composition of
Makgomo was that Impala
owned 30%, Marula owned 20% and Marula Community Chrome (MCC) owned
50%.
[85] The accused alleges
that they did their investigations and found that in MCC were other
companies like Bogompane which owned
52% shares and Majabohwa which
had 28% shares. That in Majabohwa that is where the six communities
that were affected by Marula
Platinum will receive equal shares. That
in Bogompane, the major shareholder was Tswako Mante Royal Trust,
whilst minor shareholders
were Shardrack Matjie and Esrom Mohlala. He
did not know about the status of Debora Maboea. That the directors of
MCC were allocated
15% shares in the Management Trust, and 5% to
Avacap which was the advisor to the community.
[86]
The accused alleges that when they went to Marula, they did not know
that there was a community company. What they wanted was
for Marula
to account for the past 15 years it had been mining in that area as
they did not see any development from the mine.
They knew that the
social and labour plan was given 5 years before it was renewed. After
they have submitted their grievance to
the mine, the mine gave them
full details of the agreement that they reached during the
prospecting time. At that time, they did
not know as to who was
managing the project as there was no office.
[87]
The mine management wrote a letter to Makgomo mine in order for
Makgomo to address the grievance from the community forum.
Makgomo
did not respond to the letter from the mine management, and by then
Shardrack was the chairperson of the board of Makgomo.
The mine
management gave the community forum the contact details of Makgomo.
The community forum wrote several letters to Makgomo
without
receiving any response.
[88] During July 2016
when they saw that Makgomo was not responding to their letters, they
went back to the mine. After informing
the mine about their
predicament with Makgomo, the head of security of the mine said it
was better if they shut down Makgomo Project
in order to attract
their attention. The head of security closed down the projects gates
but left the plant running. After the
project was closed, Shardrack
wrote a letter to Department of Mineral Resources (DMR) alleging that
a group of boys had shut down
the mine. DMR wrote a letter to the
mine for the mine to talk to stake holders so that they can meet at
the DMR’s offices.
[89] They attended the
meeting at the DMR’s offices, and after the first meeting, the
regional manager of DMR issued a letter
in terms of section 93 that
the project must be totally shut down, and that the employees must
stay at home until Makgomo had submitted
audited financial
statements. The mine decided to close down the mine operation of the
chrome section. At the second meeting at
the DMR’s offices,
they found that the financial statements submitted by Makgomo did not
meet the requirements that were
debated at the first meeting. DMR
decided to shut down the mine until the requirements were met.
[90] After that decision
of DMR, Shardrack and his colleague started threatening the
leadership of the forum, telling the leadership
that they were
interfering with them in the running of the project at the mine. The
accused alleges that Shardrack personally told
him that he was not
from that area, but was giving the children from that area
information that they were not entitled to and that
he must leave
that area or else he is going to regret. The accused alleges that the
former general manager of the mine and HR had
given him some of the
copies of the project from the time it started operating, and how
much the project had generated. The accused
took that information and
showed it to accused 6 who was the chairperson of the forum. He was
the secretary of the forum.
[91] He and accused 6
discussed the documents and also checked whether they were legit.
From there he and accused 6 went to Bethuel
Mohlala with the said
information so that the situation should not get out of hand. Bethuel
told them that he was still waiting
for his business advisor from
India. They waited and waited, but nothing was forthcoming, and they
decided to call Shardrack as
the director so that they could have a
meeting at the mine. The meeting was held at the mine with Shardrack
and his colleagues,
but the meeting did not yield any fruits. At that
meeting, Shardrack told them that there was no way that he could come
carrying
a buck for the children, and that the chrome was his, and
not anyone else, and further that he was not going to attend to
rubbish
meetings. After uttering those words Shardrack left the
meeting.
[92] The accused alleges
that from the documents that they have obtained from the mine, it
shows that more than R100 million was
generated from the project, and
that the said money was going to the individuals. The forum then
arranged a march to the head office
of Impala in Sandton where they
submitted a memorandum of grievances.  After the submission of
the memo, Impala facilitated
a meeting of all stake holders. However,
MCC did not attend that meeting. At that meeting Marula and Impala
requested consent to
start the operation of the mine as chrome was
piling up. They agreed on condition that the project was placed under
administration
as there were other disputes that remained unresolved.
The reason for the project to be run by an administrator was that
they wanted
the cash flow not to go to the directors until the
remaining issues were resolved.
[93] At the beginning of
2017, Shardrack, in his capacity as chairperson of Makgomo wrote a
letter to the mine telling them that
he was coming with trucks in
order to remove the chrome that was in the storage with his unarmed
security. The day Shardrack came
to the mine there was a community
meeting at the mine, and the gate to where chrome was stored, was
locked. Shardrack and his security
cut the padlock which was used to
lock the gate and entered with two trucks. When Shardrack was
supposed to leave the mine, the
community who were there to attend
the meeting revolted against him and tried to block the gate so that
his trucks must not leave
the premises. However, Shardrack’s
security guards who were heavily armed started shooting at the crowd
that have blocked
the gate. The community members started throwing
stones at the security guards, and in turn the security guards
started chasing
the community members into the village. Some
community members were caught by the security guards and taken to the
police station,
but the police did not arrest them. Some of the
community members were assaulted by the security guards. After one to
two days,
Shardrack wrote a letter to the mine apologising about what
had happened.
[94] Before April 2017,
they have held several meetings with the directors of MCC and Marula
Mine wherein they discussed about what
should happen to the project
as they wanted accountability from the chrome mine management as the
project was not benefiting the
community, and they also wanted a
restructuring of the project. During 2016, Debora Maboea’s
house was set alight, and he
did not know under what circumstances it
was set alight, but what he knows is that Debora was on the same side
with Shardrack.
Nteke was one of the suspect in the torching of
Debora’s house. At that time Nteke was a member of their
committee and also
in the executive.
[95] On 14
th
April 2017 Nteke was shot and killed. Before he was killed, on 13
th
April 2017, they have appointed their lawyers to carry forward their
dispute as there was no progress. On Good Friday, he never
went out
of his house as it was raining heavily. That day he talked to Nteke
late in the afternoon, and after that he went back
to sleep. During
2016 his house was torched whilst he was sleeping with his
girlfriend, but they managed to escape from the burning
house,
together with his grandmother and sibling. The house was petrol
bombed, and he managed to see the three people who have
petrol bombed
it. The whole house and car were gutted down.
[97] From September 2016,
he left his house and only came back on 13
th
April 2017
and slept in the bathroom that was not burned down. After Nteke was
shot, he took it that they were under attack as
his house was burned
down, and Nteke’s shop was also set alight. The three people
that he saw throwing a petrol bomb at his
house were Chancha Maepa,
Fanyana Maepa and Lawrence Matjie. These three were initially members
of their committee when the committee
was formed during January 2016.
Later the three disappeared for 2 to 3 weeks and when they came back,
they told them that Shardrack
had booked them for a week in Sun City,
and had also given them R25 000.00 each to destroy the committee.
They apologised in public
and were admitted back into the committee.
[98] Later the three left
their committee to go and form their own forum, and some of the
members who supported Shardrack joined
them. Tshepho Malatji who is
from the accused forum, attended the meeting of the newly formed
forum. At that meeting, Tshepho heard
them saying that they must do
something about accused 1 as he was the problem. After he heard that
Nteke was shot and killed, he
remained in the house and did not go
anywhere. The following day and on Sunday he did not go to the area
where Nteke was shot,
as he did not feel safe. The whole week he did
not go to Dipahale’s area.
[99] He did not know
Barclays well, but he started knowing him when they were attending
meetings and arguing about chrome. Barclays
was supporting Shardrack,
and he did not know that Barclays grew up in Matjie’s family.
He knew Moretsele, and he dispute
his evidence as he was not at the
scene. On the 15
th
and 16
th
April he was at his
homestead. He thinks why Moretsele is implicating him, was that he
was the one who had chaired the disciplinary
hearing of Moretsele
that led to his expulsion from their committee. After that Moretsele
and others formed their own committee
which did not have the support
of the community, and they decided to join Shardrack’s camp.
[100] He had opened two
criminal cases, the first been that of the torching of his house, and
the second one was when he was pointed
with a firearm by the two
Morema’s brothers who told him to get out of chrome issues. The
cases did not go anywhere. On 23
rd
April 2017 he attended
the funeral of Nteke, and he dispute that after the funeral, he had
told the people to go and gather somewhere.
That after the funeral,
he left with accused 6 who dropped him at Mandagshoek traffic circle,
and from there he went home. He does
not know Mmabatho. That on 16
th
April 2017, he had spent the whole day with his cousin Matsene Mabilu
at the shop.
[101] The accused was
cross examined and when asked as to who had committed the
maladministration in the chrome project, the accused
said that they
did not say anyone had committed maladministration, but that since
the money was not flowing the way it should,
there was
maladministration. When asked as to who had signed the agreement they
received from mine management on behalf of the
traditional council,
the accused stated that it was Kgoshi Bethuel Mohlala and Shardrack
Matjie. He stated that the project was
shut down from June 2016 to
May 2017. The accused conceded that Moretsele knows him very well,
and that he also knows Moretsele.
The accused stated that on 16
th
April he left his homestead at about 9h00 and went to the shop, and
remained at the shop with his cousin until 19h00 when he went
back to
his homestead.
[102] When asked about
the interdict that was granted against him during 2016 that prevented
him from interfering with the activities
of MCC, he stated that he
only heard about the interdict, but was never served on him. When it
was put to him that on 23
rd
April 2017 the houses started
burning at 11h00, the accused stated that at 11h00 they were entering
the graveyard, and after the
funeral he left at about 12h00. The
accused stated that he learned about the burning of the houses two to
three days later. The
accused stated that he started knowing Barclays
towards the end of 2016 at the stake holders’ meetings. He
stated that there
was no relationship between him and Barclays and
also did not have any clashes with him. He did not know whether
Barclays had any
grudges with him.
[103] Accused 2 took the
witness stand and testified under oath. He disputed the evidence of
Barclays that implicated him. He stated
that Barclays was falsely
implicating him as he was not at the scene. That on 15
th
April 2017 he was at his home looking after his cousin Thabiso who
had a car accident and was just released from the hospital.
He was
staying with Thabiso in the same house being the two only. Thabiso
was released from hospital on 12
th
April 2017 and did not
have a chance to go out as by then Thabiso could not do anything for
himself as he was seriously injured.
He had to bath and made food for
him, and also assist him to go to the toilet. That the way Thabiso
was injured, there was no way
in which he could have left him alone.
[104] From the 12
th
April 2017 to 25
th
April 2017 he was house bound as
Thabiso was his responsibility. On 16
th
April 2017 he was
not at the crime scene. On 23
rd
April 2017 he did not
attend the funeral of Nteke. He knows Barclays very well, and he is
surprised why Barclays is implicating
him. He also knows Moretsele
and dispute his evidence that is implicating him. That the letter
dated 6
th
August 2021 from Mecklenburg hospital is proof
that Thabiso was admitted at the hospital on 10
th
April
2017 and discharged on 12
th
April 2017.
[105] The accused was
cross examined and he stated that he started staying with Thabiso
during 2007 being the only two of them.
He stated that he started
knowing Barclays during 2013, and he took Barclays as a brother as
Barclays used to visit his (accused)
brother. He denied that he was
owning a fire-arm.
[106] Accused 3 took the
witness stand and testified under oath. He stated that the version
put to the State witnesses by his counsel
is the version of his
defence. He disputed the evidence of Barclays implicating him for the
incidents of the 15
th
and 16
th
April 2017. He
denied that he was at the scene of the incidents, but that he was
attending a pilgrimage in Moria from the 14
th
April 2017
to 17
th
April 2017. That in Moria, there were lot of
people and he does not remember the people who have attended the
pilgrimage. He knows
both Barclays and John the witnesses who are
implicating him. He started knowing Barclays during 2016 when the
mine problems started.
He started knowing John during 2016 when John
became the leader of the community. That John was expelled from the
organisation
at the end of 2016. That he is the one who filled John’s
position in the organisation after he was expelled, and he think
that
is the reason John is falsely implicating him.
[107] The accused further
stated that the deceased Ntaporosana was his paternal sister, and
that this case has caused a sour relationship
within the family. The
accused further stated that at the time of the incidents, he was a
secretary at church, and that after these
incidents, he was removed
from his position as secretary.
[108]
The accused was cross examined, and he stated that he was removed as
a church secretary as he was charged with murder and
arson, and that
he was removed during February 2018. He stated that when he travelled
to Moria on 14
th
April 2017, he used a bus organised by
the church. He stated that in the bus, he travelled with congregation
members like pastor
Maepa, treasurer C Mmola, and organiser Ephraim
Ngwatle. He denied that there were any of the accused in bus he was
travelling
in to Moria. He further stated that he returned from Moria
on 17
th
April 2017 around 12h00. The accused stated that
pastor Maepa, and Colourboy have since passed away, whilst Ephraim
Ngwatle has
relocated as he was a contract worker.
[109]
The accused stated that he learned about the death of Nteke on Good
Friday when church congregants of their branch were talking
about it
in the bus. Further that he also learned about the death of
Ntaporosana on 17
th
April 2017 when church congregants
were talking about it in the bus as they were heading back home. The
accused stated that he
did not have proof that he was in Moria, but
that it was recorded in the church books. The accused further stated
that the church
elders are refusing to give him that information, and
have told him that their books does not enter court rooms.
[110] The accused denied
that he was in opposition to the chiefs, and also denied that he and
accused 1 have put a tyre on the deceased
and set it alight. He
denied that he had problems with Shardrack, but stated that they are
greeting each other, and they are also
friends. The accused also
stated that he is having a good relationship with chief Mohlala, and
further that one of his family member
is a member of the royal
family. He further stated that he did not have a problem with Debora
Maboea and Walter Mohlala.
[111] Accused 4 took the
witness stand and testified under oath. He testified that the version
put to the State witnesses by his
counsel is his defence to the
charges he is facing. He stated that he knew Barclays from either
2002 or 2003, and that he grew
up and schooled with Barclays. Around
2016 the community wanted to know about the work the mine had
promised to the community,
and in his opinion Barclays think that the
community is fighting with Shardrack. He denied burning Barclays car.
That when the
community enquired from the mine about the services and
chrome, the mine referred the community to Shardrack. That they
attended
several meeting with Shardrack, and that Shardrack had told
them that the chrome was his, and that if they think that they will

take it from him, he will touch the heaven.
[112] The accused further
testified that on 15
th
April 2017, he was at his maternal
aunt’s home Matibidi Meriam Phoku who had passed away on 10
th
April 2017. That from the 10
th
April 2017 up to 23
rd
April 2017, he was assisting with the funeral arrangement for his
late aunt. That he was arranging the funeral with his uncle Harry

Phoku, and brother Edwin Boshego. That his uncle has passed away on
27
th
July 2020, and that his brother is still alive.
[113] The accused
testified that he started knowing John during 2016, but that before
that he only knew him by sight. That during
2016 he and John were
together in the leadership of the community, and that at some stage,
John was relieved of his duties by the
community. That during the
period 10
th
to 23
rd
April 2017 when he woke up
in the morning, he would go to his aunt’s place, and that John
is lying by implicating him. He
thinks that the reason why John is
implicating him, was that John was spreading lies that it was the
leadership of the community
that made him to be expelled from the
position he was holding. The accused stated that he did not attend
Nteke’s funeral
as he once had a relationship with Nteke’s
girlfriend, and that according to their custom one is not allowed to
attend a
funeral of the person he once shared a girlfriend with.
[114] The accused was
cross examined and he stated that the reason why Barclays was
implicating him was that they were fighting
with Shardrack for
community services, whilst Shardrack was maintaining Barclays and had
even bought him a car. The accused stated
that Joel Molamo was his
close friend. The accused stated that his deceased aunt was also
staying in Diphale village which was
a walking distance from his
homestead. The accused stated that he learned about Ntaporosana’s
death on 16
th
April 2017 whilst he was still at his aunt’s
homestead from one Disebo Mohobedu.
[115] Accused 7 took the
witness stand and testified under oath. She testified that she is
residing at Seuwe village with both of
her parents. She stated that
the version put to the State witnesses by her counsel is her defence.
She started knowing Barclays
during 2016 when they were attending
community meetings. At those meetings, Barclays was introducing
himself as Shardrack’s
son. She never had any relationship with
Barclays as sometimes she will greet Barclays but he will not respond
to her.
[116] The accused alleges
that Barclays is falsely implicating her as on 15
th
April
2017 she was in Moria. She left for Moria on Thursday for the Good
Friday pilgrimage, and came back on Monday morning. That
Barclays is
implicating her because she was in the leadership position in the
community, and that the leadership was fighting with
Shardrack about
community services.
[117] The accused further
testified that she knew John from 2016, and that at some stage John
was in the leadership position of
the community, but was later
expelled from that position. That John is falsely implicating her for
the murder charge as on the
date the deceased was murdered, she was
in Moria, and she returned on Monday the 17
th
April 2017,
and her father can attest to that. That she is one of the community
leaders who have raised their hands that John be
removed from the
leadership position. That Nteke was her boyfriend, and further that
she did not attend his funeral as according
to their custom, she was
not permitted to do so.
[118] The accused was
cross examined and she conceded that despite Barclays not greeting
her, there were no issues between the two
of them. The accused stated
that the fight between her and Shardrack was about the development of
the community and chrome money
that he had misused. When it was put
to her that accused 1 never testified about Shardrack misusing chrome
money, the accused stated
that she had made a mistake. She stated
that John had seen her when she raised a hand that John be removed
from the leadership
position. She stated that in Moria there were
many people whom she did not know. She conceded that she did not have
proof that
she was in Moria because she did not use the bus that was
used by their church branch to go to Moria.
[119]
Accused 8 took the witness stand and testified under oath. She
testified that she is related to Shardrack and chief Bethuel
Mohlala
through her sibling who is married to the chief’s younger
brother. That on 23
rd
April 2017 it was the burial of
Nteke, and that she did not attend that funeral as his sister who is
married to the chief’s
brother was sick, and also both of her
parents were sick, and she was looking after them. On 15
th
April 2017 in the morning, she went to fetch her sick sister from the
royal family as she was alone. On 23
rd
April 2017 her
sister was still sick, and she was still looking after her at their
parental homestead. The accused further stated
that as she was
looking after sick people, she could not attend gatherings as
according to their custom, that would have derailed
their healing
process.
[120] The accused further
testified that she knew Barclays very well from the time he was
adopted by Shardrack. The accused stated
that she was having a good
relationship with Barclays. As at the 15
th
April 2017, she
did not have any problems with Shardrack. That Barclays and John are
falsely implicating her, and does not know
the reason for that. On
16
th
April 2017 she was still at her parental homestead.
[121]
The accused was cross examined and she stated that on 15
th
April 2017 the chief’s younger brother had left with their
children, and had left her sick sister alone in the house. The

accused further stated that she took her sister to their parental
homestead as she was left alone in the house, whilst she was
very
sick. That her sister did not know the whereabouts of her husband and
children. The accused stated that she remained at her
parental home
for the entire day of the 15
th
April 2017 as both her
parents and sister were very sick, and she could not leave them alone
in the house. The accused conceded
that the homestead of Joel Molamo
is not far from that of her parents’ homestead, and that it is
a walking distance. The
accused stated that the problem that she had
with Shardrack was that Shardrack was fighting with her parents. The
accused stated
that she did not know John, but started knowing him
when they attend court in this matter. The accused stated that her
sister got
healed during 2018, whilst both her parents never got
healed and have both passed away.
[122] S[....] M[....] was
called in as a witness for accused 7. He testified that accused 7 is
her daughter. That accused 7 attends
the Zion Christiaan Church
(ZCC). The witness stated that during the Easter weekend of 2017
accused 7 had gone on a pilgrimage
in Moria. That accused 7 had told
him a day before which was on a Wednesday that she was going to Moria
the following day. He was
satisfied that accused 7 had gone to Moria,
as when she came back, she had bought oranges, apples and sugar cane.
[123]
That the day accused 7 went to Moria, he (witness) woke up in the
morning and went to the mountain to go and look after his
cattle.
When he came from looking after the cattle, accused 7 had already
left. Accused 7 came back the following week either on
a Wednesday or
Thursday. He was with his wife when accused 7 told them that the
following day she was going to Moria.
[124] The witness was
cross examined and she stated that her other children are majors and
they are staying in their respective
homes. The witness stated that
the day accused 7 went to Moria, when he went to look after the
cattle, accused’s 7 child
went to her aunt’s place whilst
accused’s 7 mother went to fetch firewood on the mountain. The
witness stated that
at the time of the incidents, accused 7 was
employed at Marula Platinum mine. The witness conceded that he was
spending the whole
day on the mountain looking after the cattle on a
daily basis and does not have a holiday. The witness stated that when
accused
7 returned from Moria, he was not present at home as he was
still looking after the cattle, and that what satisfied him that
accused
7 was in Moria was that she came along with things that they
do not have at their village.
[125] Phokwane
Sekgalemene testified as accused’s 2 witness. He testified that
on 10
th
April 2017 he was involved in a car accident and
was admitted to Moroke hospital as a result of the injuries that he
had sustained
during the accident. As a result of that accident, he
had sustained head, eye, nose and leg injuries. He was admitted to
hospital
for 3 days, and when he was discharged, he could not walk,
and had to use a wheelchair.
[126]
That at the time of the accident he was staying with accused 2 being
the two of them only. Accused 2 is his cousin. Accused
2 is the one
who fetched him from hospital after he was discharged. From there it
was accused 2 who was looking after him, by bathing,
feeding and
taking him to the toilet. Accused 2 was also assisting him with the
taking of his medication. Accused 2 had to stop
going to work in
order to take care of him, and accused 2 went back to work after he
started recovering. He started to get better
around the 27
th
or 28
th
April 2017. Regarding the dates it is alleged that
accused 2 had committed the offences, accused 2 was with him taking
care of
him. He would not know whether at some stage accused 2 had
left their homestead as some the pills that he was taking would make

him to sleep, but when he woke up, accused 2 would be there.
[127] The witness was
cross examined and he stated that the person who wrote a letter
confirming that he was admitted at the hospital
on 10
th
April 2017 was a doctor who was referring to the information
contained in his hospital file. He conceded that the doctor who wrote

that letter is not the doctor who had treated him whilst admitted at
that hospital, but that he wrote that letter in his presence.
The
witness stated that he was discharged from hospital on 12
th
April 2017. The witness further stated that on 15
th
April
2017 he had spent the whole day lying on bed in the company of
accused 2, even though at some stages he would sleep, and
would not
know what accused 2 was doing, but when he woke up, accused 2 will be
there. When asked as to who had visited him whilst
he was injured,
the witness stated that what he remembers is that one day when he
woke up, accused 2 told him that his (witness)
mother was there to
visit him.
[128] The defence called
Sefularo Emmanuel Pula to come and testify. He testified that he is a
police officer, sergeant by rank,
and the investigating officer in
the case at hand together with sergeant Moitsi. That the State
prosecutor in this case had requested
him to go and interview pastor
Maepa. The State prosecutor had told him that accused 3 had testified
that he was in Moria during
the Easter weekend of 2017, and that
there are records at church branch to proof that. On Friday the 7
th
January 2022, he interviewed pastor Maepa regarding the records of
the people who went to Moria during the Easter weekend of 2017.

The pastor told him that there was no problem he will go and look for
those records, and also consult with the secretary of the
branch and
that he will phone him on Sunday the 9
th
January 2022.
[129] On Sunday the 9
th
January 2022, he met with the pastor and other church members. In
that meeting the pastor and other church members told him that
since
it was an old matter, they doubt whether they are still having those
records. Therefore, they could not admit or deny that
accused 3 went
to Moria, and further told him that during that period they were not
yet at that branch. They also told the witness
that the records that
they are having are from 2019 onwards. The pastor and his company
refused to give the witness a statement,
saying that they did not
want to be involved court matters.
[130]
The witness was cross examined and he stated that when he went to
interview pastor Maepa, as he was investigating accused
3 alibi
defence. The witness stated that he did not verify whether pastor
Maepa was already at the church branch during 2017.
[131].
Stephina Mohlala testified as a witness for accused 8. She testified
that accused 8 is her sibling, and that she is married
to the chief’s
brother. She and the chief’s brother are having 3 children. On
23
rd
April 2017 the chief’s kraal was burned down.
During 2017 she was living with her husband and children at the
Mohlala’s
homestead, whilst accused 8 was living with their
parents at their parental home. During that period she was very sick
and her
parents were also sick. Whilst sick, she ended up been at her
parental home, and she does not know who took her there. Whilst she

was sick, she did not know what was happening to her husband. She
could not tell whether during the Easter weekend of 2017 her
husband
had attended church service. She stated that she got healed during
2017, but her mother passed away during October 2017,
whilst her
father passed away during 2019. She was sick for six to seven months.
She does not remember who was taking care of her
whilst at her
parental home. Before she got sick she was employed at Modikwa
Platinum Mine.
[132] The witness was
cross examined, and she conceded that she did not remember what had
happened during April 2017 as she was
sick. She further stated that
she could not tell whether she was fetched by accused 8 from her
marital home.
[133] That concluded the
evidence for the accused and they closed their case.
[134] Both counsel for
the State and the accused have addressed the court on the merits of
the case. The State counsel is asking
for conviction of all the
accused on the counts each one of them is facing. The defence counsel
is asking for an acquittal of all
the accused on the counts that they
are facing.
[135] The test in a
criminal case is whether the evidence establishes the guilt of the
accused beyond reasonable doubt. The corollary
is that an accused
person is entitled to be acquitted if there is a reasonable
possibility that an innocent explanation which he
had proffered might
be true. These are not independent tests, but rather the statement of
fact, viewed from two perspectives. In
order to convict, there must
be no reasonable doubt that the evidence implicating the accused is
true, which can only be so if
there is at the same time no reasonable
possibility that the evidence exculpating him is not true. The two
conclusions go hand
in hand, each one being the corollary of the
other. Thus in order for there to be a reasonable possibility that an
innocent explanation
which has been proffered by the accused might be
true, there must at the same time be a reasonable possibility that
the evidence
which implicate him might be false or mistaken. (See
S
v Sithole and Others
[1]
).
[136] All the conflicts
that came about in this case is in relation to the control of the
chrome mine. It also shows a sad state
of greediness that can turn
people into monsters by eliminating anyone who stand in their way of
attaining their wealth. Instead
of the mine benefiting the whole
community, it is only the few who wanted to benefit. This reminds me
of the documentary “blood
in the mobile” shot in the
Democratic Republic of Congo where different armed groupings were
fighting for the control of
the mine which resulted in millions of
people losing their lives in the process of the fight. In the case at
hand people have already
lost their lives and properties in trying to
get a hand in the control of the mine. Fortunately, in the case at
hand it was not
millions of people who have lost their lives, but
still one life lost is still too many. People should learn to work
together in
harmony and let the little resources they have benefit
all, rather than a few elite.
[137] All the accused
defence is that of an alibi. An alibi defence is essentially a denial
of the prosecution’s case on issue
of identity. What the
accused is simply saying is that he could not have committed the
offence as he was somewhere else at the
relevant time. It is trite
that once the accused raised alibi defence, that alibi has to be
accepted unless it was proved to be
false beyond reasonable doubt.
(See
S v
Musiker
[2]
).
[138] The State has
called several witnesses in this matter, but it was only two
witnesses who led direct evidence which implicate
all the accused,
and that is the evidence of Barclays Thobejane the 8
th
State witness and John Moretsele the 9
th
State witness.
Barclays testified about count 1 and 2, whilst John testified about
count 3 to 9. In my own analysis of the evidence,
there are two
groups involved in this matter, that of the chief led by Shardrack,
and that of the community which they refer it
as mphakathi. All the
accused before court are from the mphakathi group. From the chief’s
group the main role player is Shardrack
and Shardrack seems to be
yielding too much power. There seems to be bad blood between
Shardrack and Mphakathi as he testified
that the reason why he
suspected that the accused were the ones responsible for all these
offences was that they were the leaders
of mphakathi. Further
Barclays testified that anything bad that happens in the village was
associated with mphakathi. Shardrack
went to the extent of alleging
that accused 1, (who died in a car accident after he had testified
and will still be referred to
as accused 1), was a troublemaker, as
accused 1 and his group during 2016 interfered with the running of
the mine, by taking control
of it and forcing the company managed by
Shardrack to sell chrome at an auction. John testified that he was
once part of mphakathi
but was expelled. It is clear that there was a
lot of animosity between Shardrack’s group and mphakhathi.
[139] The evidence of
Barclays on count 1 and 2 is that of a single witness, and also the
evidence of John on count 3 to 9 is that
of a single witness. It is
trite that caution should be applied on the evidence of a single
witness and also on that of a witness
who displays animosity towards
the accused. (See
S
v Le Roux
[3]
).
[140] Accused 1 has
passed away after he had testified and before the trial was
finalised. It is trite that under those circumstances,
the State will
stop the proceedings against an accused person who passes away before
his/her trial is finalised. In deed the State
had dropped the
proceedings against accused 1. The question which this court must
determine is what will be the status of the evidence
already given by
the deceased person. Since the State has stopped the proceedings
against the deceased accused, will that evidence
still be relevant to
the proceedings, and must the court still consider it when analysing
the evidence before it.
[141] In terms of section
214 of the
Criminal
Procedure Act
[4]
(Act) the evidence of any witness recorded at a preparatory
examination shall be admissible in evidence on the trial of the
accused
following upon such preparatory examination, if it is proved
to the satisfaction of the court that the witness is dead, and if it

appears from the preparatory examination record or it is proved to
the satisfaction of the court that the accused or, the State
had a
full opportunity of cross examining that witness.
[142] In the case at hand
it is the accused who had passed away. His evidence was presented
during the main trial, and the State
had a full opportunity of cross
examining the accused. The defence had presented the original death
certificate to proof that indeed
accused 1 was dead, the other
accused were also given an opportunity to be involved in the
arranging of accused’s 1 funeral
and also attending that
funeral. In my view, it has been proved by the defence counsel to the
satisfaction of this court that accused
1 was dead. Therefore, I
don’t see any reason why the same principle that is applicable
to the acceptance of the evidence
of a dead witness recorded at a
preparatory examination should not also be extended to a co-accused
who dies after he had tendered
evidence in full during trial, but
before the trial is finalised. The evidence accused 1 have met all
the requirements of section
214 of the Act, and therefore despite the
State having stopped the proceedings against accused 1, his evidence
remain admissible
in these proceedings.
[143] As I have already
pointed out that all the accused defence is that of an alibi, and
that an alibi defence is essentially a
denial of the prosecution’s
case on the issue of identity, the onus is therefore on the
prosecution to prove that the accused
defence is false beyond
reasonable doubt. The two State witnesses Barclays and John have
known all the accused for a long time,
and some of the accused they
grew together, schooled together and are also from the same area. The
evidence of prior knowledge
of the accused by the two State witnesses
was not challenged by the accused, and is therefore regarded as
common cause. What this
court must determine is the reliability of
the identification of all the accused by the two State witnesses.
[144] In
R
v Skhekelele and Another
[5]
the court said:
“
In all cases that
turn on identification the greatest care should be taken to test the
evidence. Witnesses should be asked by what
features, marks or
indications they identify the person whom they claim to recognise.
Questions relating to his height, build,
complexion, what clothing he
was wearing and so on should be put. A bald statement that the
accused is the person who committed
the crime is not enough. Such a
statement unexplored, untested and uninvestigated, leaves the door
wide open for a possibility
of a mistake”.
[145] Count 1 and 2
relates to all the accused and the State witness who is directly
implicating all the accused except for accused
5 and 6 is Barclays.
Barclays testified that he saw the faces of the accused as they were
not far from him, and when the accused
started throwing stones he
went inside the house. Barclays also gave account of what each of the
accused allegedly did. There is
no witness to corroborate his version
despite having testified that Joel Molamo, Magatle Molamo, Diphaki
Molamo, Albertina Maunye
and Neo Maunye were present and have
witnessed the incident. W/O Mokwena has testified that Victor
Thobejane who is Barclays brother
had told him that he was amongst
the mob that was burning houses and he knows them. No explanation by
the State was given why neither
of the witnesses whom Barclays have
mentioned as having witnessed the incident were called to testify. It
is trite that failure
by the State to call an available witness may
not be without consequences where the State relies on the evidence of
a single witness.
That failure to call an available witness may in
particular circumstances justify the inference that, in the
prosecutor’s
opinion, such evidence might possibly give rise to
contradictions which could reflect adversely on the credibility and
reliability
of State witnesses. (See
S
v Teixeira
[6]
).
[146] Even though
Barclays is implicating the accused and had given a detailed account
of what each of them has done, it raises
some suspicions which affect
its reliability and credibility. Barclays himself has conceded under
cross examination that anything
bad that happens at Diphale is
associated with mphakathe of which the accused is part of it.
Barclays had stated that after this
incident until June 2018 he was
in hiding at an undisclosed location together with Shardrack.
Shardrack was the one who was funding
the costs of this hide out
place. Shardrack had conceded that he had discussed the names of the
suspects whom he suspect to have
committed these offences with Debora
and they came to the conclusion that it was the accused before court,
and those names he had
given them to the police in his police
statement. The names of the people they are suspecting as the
culprits in this matter are
the accused which Barclays is
implicating.
[147] Shardrack had
conceded that the dispute between his group and mphakathi was about
mining and that accused 1 was interfering
with the running of the
mine and also a troublemaker. Shardrack had therefore an axe to grind
against accused 1 and his group who
were standing in his way of
amassing wealth through the mining of chrome. Shardrack was able to
discuss with Debora the names of
the people they suspect to have
committed these crimes, and there was also nothing preventing him
from discussing these names with
Barclays before Barclays went to
make a police statement and also at their hide out place. Since
Barclays was depended on Shardrack
for survival, his allegiance will
be on Shardrack.
[148]
All the accused have pleaded alibi as a defence. Accused 2, 7 and 8
have called witnesses who corroborated their alibi defence.
Even
though the witness for accused 8 did not testify with certainty that
it was accused 8 who had fetched her from her marital
home, what the
witness has confirmed is that she was gravely sick, and her parents
were also sick, and accused 8 was looking after
them. There was no
evidence that rebutted accused 8 version that according to their
custom, if you are having a sick person in
the house, one is not
supposed to attend gatherings, as that will derail the person who is
sick a speedy recovery. The courts are
bound to respect people’s
custom and even to develop the customary law.
[149] There is no duty
upon an accused person to prove his innocence. When an accused person
elects to testify what the court must
determine is whether his
version is reasonably possibly true, and not whether it believes it
or not. Accused 2, 7 and 8 whom Barclays
have implicated in the
commission of the offences, have called alibi witnesses who
corroborated their versions, and there is no
basis to reject their
versions as false beyond reasonable doubt.
[150]
Even though other accused did not call witnesses to corrobarate their
alibi defence on these counts, the version of Barclays
has lots of
short comings which in turn affect its credibility and reliability.
Firstly, the State has failed call relevant witnesses
Victor
Thobejane, Joel Molamo, Magatle Molamo, Diphaki Molamo, Albertina
Maunye and Neo Maunye who have witnessed the incidents
to corroborate
Barclays version. Even though W/O Mokwena has testified that Victor
has told him that he was afraid to give a police
statement as he
feared for his life, the police if they viewed him as a vital
witness, they could have put him under the witness
protection
program. It does not seem that there was an attempt by the police to
put Victor in that program. The only inference
to drawn for the
failure by the State to call these relevant witnesses is that it was
afraid that they will contradict Barclays
version. Secondly Barclays
himself testified that anything bad that happens at Diphale is
associated with mphakathe, of which the
accused happens to be part of
mphakathi. Barclays is Shardrack’s son, and Shardrack had
already discussed the names of the
suspects with Debora. Shadrack had
been in hiding together with Barclays and also carrying the costs of
that hiding place. Shardrack
had made it clear during his testimony
in this court that he will feel safe to return to his homestead if
the accused before this
court were sent to prison. With the animosity
which Shardrack had displaced against mphakathi, immediately after
these offences
were committed, Shardrack, without facts had already
formed his own theory as to who were the suspects, and these suspects
happens
to be a stumbling block in him amassing his wealth from
chrome mining, there was nothing preventing Shardrack and Barclays in
discussing
the names of the mphakathi whom they regard as
troublemakers, and device a plan of getting rid of them. Barclays
himself had testified
that he had told Shardrack that his car was
burned by mphakathi and that he knows their names. In my view, the
evidence of Barclays
has been compromised by his close ties with
Shardrack, and he can in no way give evidence that will be contrary
to the wishes of
Shardrack, especially that there is no evidence that
corroborate his version.
[151] Thirdly, Barclays
testified that the accused 12 and 13 were throwing stones in the
yard. Logic will tell you that if indeed
stones were thrown, Barclays
would have seeked cover in order to protect himself. If he did seek
cover, it would have been improbable
for him to have an opportunity
of have seen what each of the accused was allegedly doing at the time
of the incidents. Fourthly,
Barclays testified that whilst inside the
yard, accused 1,2, 4 and 8 were calling him to get out of the yard so
that they can be
able to crash him to death. I find it improbable
that the four accused could have said the same words at the same
time. In my view,
the intention of Barclays is to make sure that each
and every accused who is before this court is implicated and sent to
prison
as per the wishes of his father Shardrack.
[152] Taking into
consideration the evidence of this matter on these counts in its
totality and holistically and as testified by
Shardrack that accused
1 and his company were troublemakers, they were preventing him in the
running of the chrome mine and also
that he will feel safe if the
accused were sent to prison, and that Barclays evidence is that of
single witness which was not corroborated
despite there being
available and relevant witnesses who have witnessed the incidents of
who might have been the culprits, in my
view, this is a case where
the accused were implicated with the possibility of a motive to get
rid of them as they were a stumbling
block to Shardrack in achieving
his goal of amassing his wealth through the chrome mine. The evidence
of Barclays as a single witness
is not trustworthy as it influenced
by a possibility of motive to assist Shardrack and therefore lacks
credibility and reliability
as there are many improbabilities in his
testimony. His evidence is therefore not satisfactory in all material
respects, and this
court has not hesitation in rejecting it as false
beyond reasonable doubt.
[153] Count 3 and 4
relates to the incident of the 15
th
April 2017 where the
deceased Ntaporosana was burned to death and also the deceased Toyota
Hilux was burned. Count 5 to 8 relates
to the incident of the 23
rd
April 2017 where several houses were burned, and count 9 also relates
to the incident of the 23
rd
April 2017 where it is alleged
that the accused acts were intended to disturb public peace and
tranquillity by unlawfully and intentionally
discharging firearms,
throwing stones and causing fire that damaged properties. Count 3 and
4 relates to accused 1, 2, 3, 4, 7
and 8, whilst count 5 to 9 relates
to accused 1, 2, 5 and 6. The witness who gave direct evidence on
count 3 to 9 is John who is
also a single witness on these counts,
and his evidence should also be treated with caution.
[154]
According to John, on 15
th
April 2017 he saw accused 1
addressing a group of people at Nteke’s homestead telling them
that people like the deceased
were wiping out the community.
Thereafter accused 1, 2, 3, 4, 7 and 8 told the people who have
parked their cars next to the deceased
Toyota double cab to remove
them. After the cars were removed accused 7, 8 and others went into
the house and came back dragging
the deceased and also assaulting
her. Accused 2, 3 and 4 also took part in the assault together with
other women unknown to John
by assaulting her with sticks. Thereafter
accused 1 and 3 went to fetch a tyre and put it on the deceased.
Accused 2 was in possession
of a 5 litre container which he poured it
on the deceased and his car. Accused 1, 2, 3 and 4 set the deceased
and her car alight,
and thereafter there was pandemonium as everyone
was running for cover fearing that the car might explode.
[155] With regard to the
incident of the 23
rd
April 2017, John testified that when
the coffin of Nteke was lowered into the grave at the graveside,
accused 2 and 6 started firing
shot with firearms into the air. John
further testified that after the funeral, accused 1 arranged a
meeting of the youth that
was held at moshate. At that meeting
accused 1 told the youth that they should start burning the houses of
the people that were
against mphakathi. John further testified that
at that meeting accused 5 arrived driving a red bakkie. After the
address by accused
1, the youth went on a rampage by burning moshate
first and thereafter the houses of the other complainants. John also
testified
that he saw accused 5 red bakkie boarded by accused 1, 2,
3, 4, 5 and others unknown to him going to the homestead of the
complainants
whom their houses were also burned. According to John,
the first house was burned at 11h00.
[156]
According to Lt-Colonel Shikhathi when they arrived at Diphale
village around 11h00, they saw the smoke of the chief’s
kraal
that was burning. Chief Bethuel Mohlala testified that he arrived at
Diphale village around 13h00 where he met a certain
boy who told him
that the group of the people who were burning the houses were led by
one Kaizer Maboea.
[157] All the accused
defence is that of an alibi. Accused 2, 7 and 8 have called their
alibi witnesses to corroborate their versions.
Accused 5 alibi is
being corroborated by accused 6 and the telephone records. The
question which this court must determine is whether
the State has
proved that the accused alibi defences is false beyond reasonable
doubt.
[158] According to the
evidence of John, the deceased was dragged from Nteke’s
homestead in full view of the people who have
gone to pay homage at
Nteke’s homestead. The evidence presented shows that there were
many people who have witnessed the
incident. However, none of them
were called to corroborate John’s version. Even warrant officer
Makgolane testified that
when he arrived at the scene, he was told
that the deceased might have been killed by community members from
Diphale. It does not
seem that the police officers have put enough
efforts to find out as to who was responsible for the said evil deeds
from the bystanders.
[159] Accused 5 testified
that when all these incidents were happening, he was in Moria using
his red bakkie, and that version is
being corroborated by accused 6
and the telephone records. Accused 5 could therefore not have been at
the two places at the same.
Accused 7 alibi is also being
corroborated by his father, and also accused 2 alibi is being
corroborated by his cousin. John has
testified that the accused have
started burning the first house at 11h00. The version of the houses
burning at 11h00 is being corroborated
by Lt-Col Shikhathi. Accused 1
testified that at 11h00 they were entering the graveyard. Accused 1
and 6 have been actively involved
in the running of the funeral
programme of Nteke. This version was not challenged by the State. The
only inference to be drawn
is that when the houses started burning
the funeral service of Nteke was still in progress where accused 1
and 6 were part of it.
[160] According to
accused 6, he left Nteke’s homestead at 12h30 in the company of
accused 1. His telephone records shows
that around 14h00 he was in
the vicinity of Stofberg which he alleges that it is about 220 km
from Diphale village. According to
John, before the houses were
burned, accused 1 had addressed the youth and incited them to burn
the houses of the people who were
against mphakathi, and that the
address was after the funeral of Nteke. However, the unchallenged
version of accused 1 is that
at 11h00, the funeral service of Nteke
was still in progress. Therefore, it could not have been accused 1
who had incited the mob
to burn the houses of the complainants. That
will give credence to the version of Chief Bethuel Mohlala that he
was told that the
mob was been led by one Kaizer Maboea. That piece
of evidence of being told by a certain boy amounts to hearsay which
under normal
circumstances will not be admissible. However, there are
exceptions under which hearsay evidence may be admissible.
[161]
Section 3(1) of the
Law
of Evidence Amendment Act
[7]
provides that:
“
(1) Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless-
(a)each party against
whom the evidence is to be adduced agrees to the admission thereof as
evidence at such proceedings;
(b)the person upon whose
credibility the probative value of such evidence depends, himself
testifies at such proceedings; or
(c)the court having
regard to-
(i)the nature of the
proceedings;
(ii)the nature of the
evidence;
(iii)the purpose for
which the evidence is tendered;
(iv)the probative value
of the evidence;
(v)the reason why the
evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi)any prejudice to a
party which the admission of such evidence might entail; and
(vii)any factor which
should in the opinion of the court be taken into account, is of the
opinion that such evidence should be admitted
in the interest of
justice.”
[162] This piece of
evidence emanates from the State witness which does not seem that the
police had investigated it. Had the police
investigated it and found
that it is indeed true, that will exonerate the accused before court.
By applying the normal test that
is applicable to hearsay evidence
and rendering it inadmissible despite it coming from the State
witness, will lead to a travesty
of justice. The nature of this piece
of evidence is such that if it ignored, might lead to wrong people
being convicted. The State
would not suffer any prejudice if this
piece of evidence is rendered admissible since it emanates from the
State’s version,
and they had the opportunity to investigate
its veracity but had failed to do so. The duty of the State in
presenting its evidence
before court is not to secure a conviction at
all costs, but present evidence that will assist the court in
arriving at a just
and equitable decision. In my view, it will be in
the interest of justice if the hearsay evidence relating to the boy
who told
chief Mohlala that the mob that burned the houses was led by
Kaizer Maboea is rendered admissible.
[163] John in his
evidence in chief has failed to disclose that he was expelled from
mphakathi and went on to form his own forum
which did not take off
the ground, and then decided to join Shardrack’s group. In his
evidence in chief John testified that
he had left mphakathi because
he was not pleased in the manner in which mphakathi was doing some of
the things. However, under
cross examination he testified that he was
expelled from mphakathi for refusing to burn moshate, whilst from his
own version the
issue of the burning of moshate was only discussed at
the meeting of the 23
rd
April 2017 long after he has been
expelled. That in my view, affect his credibility as a witness in
this matter as he is not taking
this court into his confidence by
making an honest disclosure.
[164] Debora Maboea has
testified that on 23
rd
April 2017 she received a telephone
call from her daughter Mmabatho telling her that her homestead was on
fire and that she could
identify the people who were burning the
house. However, the very same Debora, has frustrated the State in
securing the attendance
of Mmabatho as a witness to come and
corroborate her version. She has made it clear that she does want
Mmabatho to be involved
in this matter despite Mmabatho being a key
witness. However, Debora and Shardrack are able to discuss this
matter and come up
with own suspects whom they want this court to
believe are responsible for all these atrocities. The only inference
to be drawn
why Debora does not want Mmabatho to come and testify in
this matter, is that she is afraid that Mmabatho might come and
contradict
her version.
[165] Debora testified
that she believes that the accused before court are responsible for
burning their houses as they are the
leaders of the community that is
against them. Shardrack had conceded that the dispute between the
chief’s group and mphakathi
is about mining and that accused 1
and his group were troublemakers as they once took control of the
running of the mine and forced
them to sell chrome at an auction.
John was unceremoniously expelled from the forum, tried to form his
own forum that will compete
with the one he was expelled from. John
new forum did not take off the ground, and he joined hands with
Shardrack’s group
that was fighting with mphakathi which had
expelled John.
[166]
It is clear that Debora, Shardrack and John had axe to grind against
mphakathi. Debora and Shardrack were able to discuss
the names of the
people they regard as suspects, and since John was in their camp, and
was still bitter with mphakathi, the only
inference to be drawn is
that they also discussed those names with John since they saw the
accused as troublemakers and also being
after them. Accused 2, 5, 6
and 7 have raised strong alibis which this court has no grounds to
find it to be false beyond reasonable
doubt. The only inference to be
drawn as to why John is implicating these accused is the possibility
of a motive of revenge and
to assist Shardrack in fighting his
battles with mphakathi. In my view, even though John has prior
knowledge of the accused, his
evidence against the accused had some
possibility of ulterior motives, and also being that single witness
was not reliable and
credible. Even though the other accused did not
present alibi witness, the manner in which the evidence of John is
tainted, its
credibility and reliability affect his entire evidence.
[167] Under the
circumstances I find that the State has failed to prove that the
alibi defence of all the accused was false beyond
reasonable doubt.
All the accused are therefore given the benefit of doubt on all the
counts that they are facing.
[168] In the result I
make the following order:
168.1 All the accused are
found not guilty and discharged on all the counts that they are
facing.
MF
KGANYAGO
JUDGE
OF THE HIGH COURT OF
SA
LIMPOPO
DIVISION, POLOKWANE
APPEARENCES
Counsel
for the State

: Adv C Chauke
Briefed
by

:DPP Polokwane
Counsel
for the accused

: I Motloung
Briefed
by

: Noxuko Attorneys
Date
of closing address

: 28
th
March 2022
Date
of judgment

: 31
st
March 2022
[1]
1999
(1) SACR 585 (W)
[2]
2013
(1) SACR 517
(SCA) at para 15
[3]
2010
(2) SACR 11
(SCA) at 20e
[4]
51
of 1977
[5]
1953
(1) SA 636
(T) at 638F-639A
[6]
1980
(3) SA 755
(A) at 764A
[7]
45
of 1988